OVER SEVERAL DECADES now, the culture wars have been tearing at the fabric of our polity. Even in relatively prosperous times such as these, the clashes make dialogue less civilized and our country less governable. No issue has aroused more passion and division than abortion.
In 1973, the Supreme Court in Roe v. Wade may have been operating under the delusion that, by writing what amounted to a national abortion law, it would put the matter to rest. That was hardly the case. The decision rested in part upon previous decisions that recognized a Constitutional right to privacy. Those decisions were about a couple's access to birth control in states where it had been outlawed. In Roe, however, couples were not isolated in their privacy. Something else or somebody else, however one wishes to describe it, was present. This required the Court to enter into a complex balancing act--weighing the rights of the woman against the protection of potential life, as the Court put it.
Thus, Justice Harry Blackmun, who wrote the majority opinion, delved into what medical science knew at the time about pregnancy and abortion. He then built a complex architecture around the issue. Dividing the pregnancy into trimesters, he concluded that, in the first trimester, since abortions generally were safe and there was no viability for the fetus outside the womb, the decision to terminate the pregnancy was entirely between the woman and her doctor. In the second trimester, since abortion could be risky to a mother's health and the fetus still was without viability, it was the state's responsibility to provide safe abortion procedures. In the third trimester, at the point of viability, abortions would be allowed only when the mother's life or health was at risk.
Making a Supreme Court decision based upon the current state of medical science is risky, and so it was with Roe v. Wade. When the Court ruled in Casey v. Planned Parenthood of Pennsylvania (1992) and in subsequent cases, it recognized that medical science had moved on from 1973. Abortions were safer deeper into the pregnancy and the fetus was viable earlier in the pregnancy. Thus, the Court had to abandon the trimester architecture of Roe. It created a new and ambiguous standard for judging abortion laws. Any such law must not impose "an undue burden" on a woman's right to terminate a pregnancy. In writing the Casey decision, Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter explained that "a...